BP2005/1134, Transcript of Proceedings [2005] AIRCTrans 2295 (7 November 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13250-1

SENIOR DEPUTY PRESIDENT LACY

BP2005/1134

FARSTAD SHIPPING (INDIAN PACIFIC) PTY LTD
AND
AUSTRALIAN INSTITUTE OF MARINE AND POWER ENGINEERS, THE AUSTRALIAN INSTITUTE OF MARINE AND POWER ENGINEERS, THE-WEST AUSTRALIA BRANCH
s.170MW - Power of the Commission to suspend or terminate bargaining period
(BP2005/1134)

MELBOURNE

11.12AM, FRIDAY, 21 OCTOBER 2005

Continued from 12/9/2005

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning, any change in appearances?

PN2

MR W G McNALLY: I seek leave to appear for the Australian Institute of Power and Marine Engineers. Could I apologise for being delayed. The cab driver took us via Adelaide.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr McNally.

PN4

MR R BUNTING: Your Honour, I continue my appearance for Farstad, with me MR T CACCAMO, of Australian Mines and Metals Association in Perth. The other gentlemen in Perth I may mention are MR I DEL'LOSSO and MR B McNICOLL, both from Tidewater Marine and here at the bar table with me MR P BARROW from Farstad. Your Honour, I'm understanding both matters are being called on. Is that the position?

PN5

THE SENIOR DEPUTY PRESIDENT: I think we've called on the first matter in the list at this stage.

PN6

MR BUNTING: Which matter is that?

PN7

THE SENIOR DEPUTY PRESIDENT: Farstad Shipping.

PN8

MR BUNTING: Your Honour, you will recall that these matters were dealt with together in the earlier proceedings in Perth and it's our submission that that remains an appropriate course. I should say that I think Mr Christiansen said to me earlier and perhaps this is the position, Mr McNally would put that they would prefer to have the matters dealt with separately. Nevertheless you will recall that the nature of the application and the nature of the evidence material last time about these claims having a high degree of commonality, that continues to be in our submission the position and certainly at the outset it would be appropriate for the matters to be dealt with together, as they were last time. If then Mr McNally wishes to have an application to have them separated, that would be something that he could pursue, but the status quo is that they are being dealt with together and I would request that we commence in that way.

PN9

THE SENIOR DEPUTY PRESIDENT: Are you pressing your 170MW application?

PN10

MR BUNTING: They remain on foot, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, they're listed for report back actually.

PN12

MR BUNTING: Yes, they are listed. Both matters are listed for report back.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, but are you pressing that application or those applications at this stage?

PN14

MR BUNTING: We're not pressing them this morning in the sense that we're asking for orders to be made this morning, but neither have we abandoned those matters. One of the things I will be saying during the course of the morning is that we will be, if necessary, at an appropriate time, seeking leave to amend those applications to take into account some new bargaining period - - -

PN15

THE SENIOR DEPUTY PRESIDENT: That's what I was going to say, but in any event, I suppose we'll come to that in due course.

PN16

MR BUNTING: What I wish to do is give a general report about what's been going on and then focus on what are the negotiations that have happened with Farstad. Mr Caccamo will say what are the negotiations that's been happening with Tidewater and then hand over to Mr McNally to get his report. That's the way I propose proceeding.

PN17

THE SENIOR DEPUTY PRESIDENT: Perhaps I'll hear from Mr McNally first on the issue of adjoining.

PN18

MR McNALLY: On the last occasion, as recorded at PN8, Mr Bunting had this to say, that, "Might I say that all four applications deal with a common set of facts wherein it's convenient for them at least to be heard concurrently. Whether or not a formal adjoining order is required, we don't really have a particular point of view on, but it is convenient that they be heard concurrently and on a common transcript." That course was not opposed at that stage because of the convenience of having the common facts heard altogether. We now point out firstly that the matters were not joined and we oppose them being joined and we oppose them being heard together if the Commission pleases.

PN19

THE SENIOR DEPUTY PRESIDENT: Why is that, Mr McNally?

PN20

MR McNALLY: The facts are now different as we set up negotiations with one company that's had nought to do with the other company. There's been a set of negotiations with the second company which has nought to do with the first company, and the reports are different. If the Commission pleases and I do notice the Commission's got no other matter listed today, it won't seriously extend the time, if the Commission please.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Bunting - - -

PN22

MR BUNTING: Your Honour, I might just say that it's not by any means an agreed matter but the negotiations that one company is having with the Institute have nothing to do with the negotiations that the other is having. I understand that's the position of the Institute, that it's not an agreed position.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes. But is there still any live issue in relation to the bargaining periods that were initiated in respect to which the 170MW application was made?

PN24

MR BUNTING: Well, the position, your Honour, on those bargaining periods is a bit confused. There were original bargaining periods issue which in the case of Farstad was 112 of 2005 and in the case of Tidewater Marine 116 of 2005. At least in the case of Farstad, that bargaining period remains on foot, although a document was received yesterday giving a different matter number but we infer probably the Farstad one was its intended target, suggesting that all claims except certain claims are withdrawn. However it still remains on foot we understand. Then in relation to the Tidewater application, or the BP in relation to Tidewater, I haven't seen it, but I think I have news from Mr Caccamo that some document was received either late yesterday or this morning to the effect that the union, the Institute, abandons or withdraws that claim completely. I'll just ask Mr Caccamo to - - -

PN25

MR CACCAMO: My understanding is - I unfortunately haven't sighted it either - but my understanding is that it's continuing on with expenses and related matters.

PN26

MR BUNTING: Thank you, in which case it's the same as the Farstad matter, so it continues on with a limited list of items. Then the other developments are that two - well, in the case of each company - new bargaining periods were commenced. In the case of Farstad, 1316 of 2005, and in the case of Tidewater Marine, 1311 of 2005, and then that was done on or about 5 or 6 October and then they were amended with another document in each case on 10 October. So we've had bargaining periods notices whistling through the ether with great regularity, but what we've had and expanding and retracting, abandoning in part, not in whole.

PN27

The original bargaining periods still are on foot. The negotiations which we're about to report on have been going since, on the evidence last time, indeed, at the insistence of the Institute, at least since late last year, certainly early this year, there are various chapters, twists and turns and these bargaining period notices are part of that story, but it would be facile to suggest that there hasn't been a continuation of negotiations involving these companies and the Institute throughout. So that's the history, those are the facts, I just wished to - - -

PN28

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. As I understand Mr McNally's intentions, the bargaining has reached different stages, if you like, is that correct?

PN29

MR BUNTING: Well, in substance I don't think it is correct, your Honour. If I can give a general report I'll be able to perhaps deal with it in a more coherent way.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN31

MR BUNTING: Perhaps, I don't know whether you - at the moment it's a common transcript anyway, so perhaps if I just report and we see how we go and you can rule as you think appropriate on the issues.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes, okay.

PN33

MR McNALLY: There was only one matter being called on.

PN34

THE SENIOR DEPUTY PRESIDENT: That's right, there is only one matter being called on at this stage

PN35

MR McNALLY: I don't mind if what my friend says now strays a bit into the other matter. It's not relevant to this matter. It's - - -

PN36

THE SENIOR DEPUTY PRESIDENT: I think it's a matter - I mean, it's only report, Mr McNally.

PN37

MR McNALLY: Yes, that's right.

PN38

THE SENIOR DEPUTY PRESIDENT: And I'll hear what the report is and - - -

PN39

MR BUNTING: Your Honour, since the last occasion I should report firstly that there has been no industrial action. The original proceedings were both brought under section 127 and 170MW(2) and we are pleased to be able to report that there has been no industrial action. The negotiations between the parties for the renewal for the Farstad and Tidewater EBAs have been proceeding, but there is no result at this stage in either case of either company. I'm intending to report in relation to Farstad at the moment and Mr Caccamo will report in relation to Tidewater at the appropriate time.

PN40

We want to just run through some general things. Now, I have already mentioned that there have been new bargaining periods commenced and amended on 5 or 6 October, and the amendment on the 10th. They are in BP2005/1316 for Farstad, BP2005/1311 for Tidewater. The Institute has notified Farstad and I gather it's notified also Tidewater that it has withdrawn claims in the original - most of the claims in the original bargaining periods but not all of them. What all these manoeuvrings are about, we don't know. No doubt Mr McNally will say something about it. We presume that the argument will be along the lines of, notwithstanding all of the history, these are completely fresh, un-associated, purely enterprise focused negotiations.

PN41

That may be what they say. Our clear view, though, your Honour, and our submission is that serving new bits of paper and ending, limiting, creating bargaining periods against the history in this matter is not effective to achieve that outcome. What we are dealing with is a continuation of negotiations which have been going at different paces since late last year, and there's evidence about those negotiations before you and we will shortly report on for the chapters in the negotiations, the substance of the negotiations.

PN42

Now, I have already indicated and I mention again that we will at an appropriate time seek leave to amend our two section 170MW applications brought under subsection (2) of that application to include the new numbers, the new bargaining periods numbers. One matter which has become quite clear to us, your Honour, is that the enterprise bargaining processes here are being seriously impeded by what is in truth an industry-wide wages relativity issue. There is a dispute in the industry as a result of claims being advanced by the Institute about whether there should be parity in wages as between the Master of a vessel and the Chief Engineer.

PN43

The current situation is that there is a two per cent differential in favour of the Master. That status quo, we understand, goes back to the early 1970s at least. It's an undisturbed wages relativity which has been in the industry since then. The Institute has as a practical pivotal claim in its position the proposition that there needs to be parity. That has to be conceded. You'll get a deal if that issue is conceded. This is a particularly vexing issue because, even if it were conceded, and I'm not suggesting that it is ever likely to be conceded, but even if it were conceded, that wouldn't really solve the practical industrial problems that these employers have.

PN44

It would just move inevitably the focus of them to a big argument with the AMAU and the Deck Officers and, indeed, quite possibly with other categories, not just the Master, other categories of Engineer, Deck Officer and possibly Ratings. We are indeed contemplating, and I put it no higher than that, we are contemplating notifying a dispute about this to the Commission to involve, not only the Institute, but all interested parties which would certainly include the Officers, because it's not a problem that can be resolved on a one-out basis between us and the Institute.

PN45

Moving now to the specific Farstad report I'd like to hand up a bundle of papers and then I'll just mention them as I go. I don't know whether you wish to mark these for identification.

PN46

THE SENIOR DEPUTY PRESIDENT: Perhaps I should mark them. Just bear with me while I find out what the last matter was. Perhaps I'll mark this F1.

EXHIBIT #F1 BUNDLE OF DOCUMENTS INCLUDING FARSTAD SHIPPING (INDIAN PACIFIC) PTY LTD RESPONSE TO AIMPE CLAIMS DATED 27/07/2005

PN47

MR BUNTING: So this is a bundle of papers commencing with a document entitled Farstad Shipping (Indian Pacific) Pty Ltd Response to AIMPE Claims 27 September 2005. You will recall, your Honour, that the Commission's directions required the - as a sort of a practical first step - that in the Farstad matter that Farstad would provide a position paper to the Institute by 28 September. That was done on the 27th and that's the first document. Then the next, going chronologically, the next development was on or about 5 October, the document is dated the 5th, I don't know whether it was received that day or the next, there's a Notice of Initiation of Bargaining Period, that's the bargaining period in 2005/1316, and there's a list of claims which is attached to that.

PN48

Then there was a meeting of the parties in Melbourne on 6 October and there was a without prejudice discussion on that day.

PN49

THE SENIOR DEPUTY PRESIDENT: That's the Farstad - - -

PN50

MR BUNTING: I'm talking about Farstad and the Institute, that's right. When Mr Caccamo reports he'll mention the meeting which happened the next day involving Tidewater. Then, just going chronologically, the next thing that happened was that on 10 October the Institute amended its new bargaining period and a copy of that document faxed from Mr Olsen is in the papers. It's dated 10 October. Then Farstad gave a proposal for the resolution of the matter on a without prejudice package which it supplied, I think, on 14 October and a copy of that document is the next one which appears in the bundle on Farstad letterhead.

PN51

Then there was a response to that by email from Mr Christiansen and that's attached as the next document. It starts with some blank space at the top of the page.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes.

PN53

MR BUNTING: I don't go to the detail of it. Then there was a letter dated 19 October from Peter Barrow of Farstad to Henning Christiansen, it's a single page letter. I might just read that if I may. It acknowledges receipt of Mr Christiansen's email. He then says:

PN54

Farstad's understanding is that the AIMPE claim for wages parity between the Chief Engineer and the Master on our vessels is pivotal. This is a claim we've rejected and our position on this issue remains unchanged. We understand that you hold a different view and no doubt other parties will have their own views. We would welcome any additional information on new relatives and parity claim for our consideration. We would also welcome your thoughts on how this issue can be resolved. One option may be an arbitrated outcome in this issue.

PN55

Then there's the second last document in the bundle is a communication which Joe Homsey, who is the Managing Director of Farstad, sent to Marine Engineers on 19 October about these issues, and then finally there's the - - -

PN56

THE SENIOR DEPUTY PRESIDENT: The Marine Engineers or the Institute?

PN57

MR BUNTING: What did I say?

PN58

THE SENIOR DEPUTY PRESIDENT: Marine Engineers.

PN59

MR BUNTING: Marine Engineers, yes, to all members of the engineering staff of Farstad, employed by Farstad. Yes, it's to all the members.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN61

MR BUNTING: And then finally there's the AIMPE letter or fax of 20 October 2005 headed Amendment BP2005/1134. That 1134 is of course our application under section 170MW(2), but it related to a particular bargaining period which was 112.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes.

PN63

MR BUNTING: So we are getting, and perhaps that's an erroneous reference, and perhaps they intended 112. Where we are up to, your Honour, is that there is something of an impasse. The pivotal issue in our understanding is the one that we've identified. We're not going to get a sensible proposal from the Institute unless we concede on that point. They're not going to consider seriously our proposals unless we have conceded on that point. We need to find a way through that point. You'll see that one of the things we've contemplated is maybe there should be an arbitration. We're not dogmatic about it, but it's not going to go away through us conceding an impossible claim and getting into World War Three with other people. That's not going to happen.

PN64

So we do need to find some sort of way of getting through it. Now, what I would propose, your Honour, is that we should now hear a report from Mr Caccamo in relation to the specific Tidewater negotiations. The preamble I've given is equally applicable to Tidewater as it is to Farstad. I would propose that that matter now be called on, that the preamble I've given is part of the Farstad record and that Mr Caccamo updates you about that, after which Mr McNally should be able to respond as he sees fit in relation to both matters.

PN65

THE SENIOR DEPUTY PRESIDENT: Perhaps I'll ask Mr McNally first of all. Mr McNally, on the issue of joinder, how do you say that you are or your client is embarrassed by joinder of the two matters or disadvantaged or - - -

PN66

MR McNALLY: Well, what's happened in this matter of course has happened in other matters. When a union serves a bargaining period on a number of companies in an industry at the same time and the company - the various companies are members of an association who seeks to represent each of those companies in joint negotiations, of course, that's a very sensible course and doesn't detract from the merits of the negotiation unless one of the parties on either side seek to take some legal advantage of that, and that's what's happened and that's what led to the last hearing.

PN67

Now, all's fair in love and war. We don't criticise those at the other end of the table for using whatever dynamite they've got, but the Institute - I've read the transcript, I've spoken to the officials. We're negotiating in good faith and that's conceded. They were negotiating towards the establishment of certified agreements involving some, hopefully all of these companies separately. Now, that led to what happened last time and whereas I detect the Commission was anxious to do something about that, Mr Bunting, representing the employees, of course says he's right. He's anxious to keep the status quo going so he can argue down the track a bit, but negotiations weren't bona fide.

PN68

We commenced putting in to - or the Institute commenced putting into effect your directions by surveying the employees of Farstad and they came forward with what they perceived to be claims that were important to them in their workplace and we processed that by serving on the employer, consistent with your directions, particulars of those claims. Now, why we object is because we want to emphasise that whatever negotiations have taken place since your direction in September and continued to be bona fide negotiations, but directly solely at each individual company. They've been totally separate negotiations.

PN69

Now, my friend can stand up and appear with a member of an association and try and continue the connection and that's his right. We have the right, we have the duty, in accordance with the Act to have separate negotiations with these companies. In compliance with the Act we seek separate negotiations with the company. We've had separate negotiations with the company and we seek separate proceedings with the company. If the Commission pleases.

PN70

We would suggest of course the Commission take us to stand down in the first matter, call on the second matter. We have no objection to any matter that Mr Bunting has said which is relevant to the second matter being used in the second matter, if the Commission pleases.

PN71

THE SENIOR DEPUTY PRESIDENT: So you have no objection to this matter being adjourned and call on the second matter?

PN72

MR McNALLY: Yes, and I've got no objection to the matter being recalled.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Bunting, it seems to me that the companies, that is Farstad and Tidewater, have bought their applications complaining of the union's attempts, if you like, to conduct bargaining on an industry required basis and it may be prejudicial to them to deal with the matters now if they are joined. That does not preclude you from at some later stage seeking to have the matters joined if you wish to press your applications for examination of the bargaining period, but for the present I propose to deal with the matters separately and I would at this stage adjourn the current matter, the Farstad matter, 1134 - - -

PN74

MR BUNTING: Your Honour, before that happens, may I just comment. We accept the ruling. We don't cavil with it. At the end of the day, I mean, Mr McNally and I can jockey on this thing, but the argument he put, I understand, is there, whether the matter is joined or not. Our argument will stand whether the matter is joined or not. I suppose our only other consideration is the practicality of hopping from transcript to transcript, but we don't cavil with the ruling if you think that's the more appropriate course. Could I just mention one other thing?

PN75

THE SENIOR DEPUTY PRESIDENT: Of course, that's without prejudice to your right, as I say, to apply to have them joined at a later stage.

PN76

MR BUNTING: One other thing, Mr McNally said it was this common claim that led us to bringing applications and indeed, your Honour said something similar just now. In a sense that's right, but what brought - we don't actually, and we never have complained that the Institute was talking to us together. We never complained about that.

PN77

THE SENIOR DEPUTY PRESIDENT: I think we had some debate about that in the - - -

PN78

MR BUNTING: It was a convenient course and in substance we'd say it's still really happening. However, the only thing we complain about was using industrial action in support of those negotiations. The negotiations were not a matter of complaint and are still not a matter of complaint.

PN79

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Bunting. I'll adjourn the matter BP2005/1134 briefly and call on the other matter.

<SHORT ADJOURNMENT [11.42AM]
<RESUMED [11.50AM]

PN80

MR BUNTING: Your Honour, this is the Farstad matter?

PN81

THE SENIOR DEPUTY PRESIDENT: Yes.

PN82

MR BUNTING: Could I just mention one thing which I forgot earlier to mention in the chronology of things that's happened in the Farstad negotiations. There was a compilation of the provisions on different things, that Farstad and the Institute have had going between themselves in a bundle of papers which was delivered to the Institute, I think, last night probably by email, so that may be, as was the Tidewater matter, a bundle which they've received, but probably have not had an opportunity to look at. I just mention that for completeness.

PN83

MR McNALLY: We haven't read it but we've got it.

PN84

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN85

MR BUNTING: We accept that.

PN86

THE SENIOR DEPUTY PRESIDENT: Do you have any objection to adjourning this matter into conference?

PN87

MR BUNTING: No, your Honour.

PN88

THE SENIOR DEPUTY PRESIDENT: Do you have any objection to adjourning into conference?

PN89

MR McNALLY: No, I don't, your Honour.

PN90

THE SENIOR DEPUTY PRESIDENT: Very well, I adjourn this matter into conference.

<NO FURTHER PROCEEDINGS RECORDED

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #F1 BUNDLE OF DOCUMENTS INCLUDING FARSTAD SHIPPING (INDIAN PACIFIC) PTY LTD RESPONSE TO AIMPE CLAIMS DATED 27/07/2005 PN46